Culpa is Imputable to Defect of Intellect while Dolus is to Defect of Heart

Enrile: What does ‘culpa’ mean?

By Michael Lim Ubac
Philippine Daily Inquirer

12:48 am | Tuesday, May 29th, 2012

ENRILE His questions seem to augur ill for Chief Justice Renato Corona when the Senate impeachment court hands down its verdict Tuesday.

Senate President Juan Ponce Enrile had the last word in the closing arguments Monday, but he left the question hanging  on whether Chief Justice Renato Corona willfully and intentionally fudged his statement of assets, liabilities and net worth (SALN) and should be convicted.

Before adjourning Monday, Enrile bombarded the defense lawyers with a series of questions over their  contention the alleged nondeclaration and misdeclaration of certain assets and bank deposits in the Chief Justice’s SALNs did not amount to an impeachable offense.

“What injury or prejudice may arise if a depositor, who is a public officer or employee, of a foreign currency deposit would include that deposit or the amount represented by that deposit in his statement of assets, liabilities and net worth?” Enrile asked.

The lead defense counsel, Serafin Cuevas, replied that he was “not very sure … insofar as damage is concerned.”

Upon a clarification by Enrile, Cuevas said: “The probability of kidnapping, extortion and so on may come into the picture because, especially with the present trend of criminality in the country today, there is no assurance that one is immune from any of these offenses. That may be one.”

Enrile then asked whether this scenario had been contemplated by the framers of Republic Act No. 6426 (Foreign Currency Deposit Act of the Philippines), as well as the presidential decrees preceding it.

“The declaration of policy is entirely different from the disastrous consequences or unwarranted circumstances that may occur thereafter,” Cuevas insisted.

Enrile then asked, “Will a public officer or a public employee who maintains a foreign currency deposit incur the punitive penalty of RA 6426 if he would reflect that deposit in his SALN?”

Cuevas said,  “I don’t see that probability, but it could amount to a (forced) consent, as distinguished from a voluntary provision on the part of the depositor.”

No Secrecy Law
Enrile explained: “We are forgetting that the law allows the exposure of a foreign currency deposit by expressed provision of RA 6426 if the depositor himself would give (the consent). There’s no monetary secrecy law in this country that prohibits or inhibits or proscribes the depositor from revealing his own deposits. What is prohibited is for a third party to reveal it, and that’s why they are penalized, but the depositor is not.”

Enrile also pointed Cuevas to Section 17, Article 11 of the Constitution, which says: “A public officer or employee shall upon assumption of office, and as often thereafter as may be provided by law, submit a declaration under oath of his assets, liabilities and net worth.”

“Do you consider that sentence as mandatory that requires to be obeyed by a public officer or public employee?” asked Enrile. “Do you  consider that a command of the people, or is it something that can be disregarded?”

Cuevas said the Constitution could not be disregarded by public officials.

But, he added:  “When there are gripes that arise from a different law, I don’t see any reason as to why it cannot be availed of, in this particular instant, the depositor. Why the law has granted that is beyond my comprehension. It’s a legislative function … I’m not privileged neither can define or fathom the reason behind it.”

Cuevas, a former Supreme Court associate justice, was citing the confidentiality invoked by the Chief Justice in refusing to declare in his SALNs the $2.4 million in dollar deposits.

Sovereign Command
Enrile then asked if disobedience of “a sovereign command” in the Constitution would constitute a culpable violation of the Constitution, which is an impeachable offense.

“I would not be in a position to make a statement to that unless the actual facts surrounding the circumstances are known to me,” said Cuevas, who said that this “would be a matter of conjecture or surmise on my part.”

Enrile then asked Cuevas about the difference in the Roman Law doctrine of “culpa” and “dolos” from where the constitutional intent of “culpable” was derived.

According to Cuevas, “dolos is intentional,” while “culpa is negligence.” Enrile disagreed, saying that “culpa is deserving of blame.”

When Cuevas claimed that “intention” was needed to ascertain whether disobedience to the provision of Section 17 of the Constitution deserved blame, Enrile pointed out that the provision did not call for any intent.

“Where in that provision will you find intent?” Enrile asked.

Willful, Intentional

Representative Rodolfo Fariñas, speaking for the prosecution, said that according to the records of the 1987 Constitutional Commission, “culpable violation of Constitution is understood to mean willful and intentional violation of the Constitution and not violation committed unintentionally, or involuntarily, or in good faith, or through an honest mistake of judgment.

“And it implies deliberate intent, perhaps even a degree of perversity for it is not easy to imagine that individuals in the category of these officials would go so far as to defy knowingly what the Constitution commands.”

Defense lawyer Eduardo de los Angeles earlier insisted that Corona’s failure to disclose his $2.4 million in bank accounts did not amount to an “impeachable breach of trust.”

He said that at best, this omission would only amount to “a fine not exceeding P5,000, or imprisonment not exceeding five years, or both.”

CD: Catholic Vicar Apostolic v. CA

CATHOLIC VICAR APOSTOLIC v. CA
G.R. No. L-80294-95 September 21, 1988
Gancayco, J.

Doctrine:
The bailees' failure to return the subject matter of commodatum to the bailor does not mean adverse possession on the part of the borrower. The bailee held in trust the property subject matter of commodatum.


Facts:
Catholic Vicar Apostolic of the Mountain Province (VICAR for brevity) filed an application for registration of title over Lots 1, 2, 3, and 4, said Lots being the sites of the Catholic Church building, convents, high school building, school gymnasium, school dormitories, social hall, stonewalls, etc. The Heirs of Juan Valdez and the Heirs of Egmidio Octaviano filed their Answer/Opposition on Lots Nos. 2 and 3, respectively, asserting ownership and title thereto since their predecessors' house was borrowed by petitioner Vicar after the church and the convent were destroyed.. After trial on the merits, the land registration court promulgated its Decision confirming the registrable title of VICAR to Lots 1, 2, 3, and 4.

The Heirs of Juan Valdez appealed the decision of the land registration court to the then Court of Appeals, The Court of Appeals reversed the decision. Thereupon, the VICAR filed with the Supreme Court a petition for review on certiorari of the decision of the Court of Appeals dismissing his application for registration of Lots 2 and 3.


Issue:
Whether or not the failure to return the subject matter of commodatum constitutes an adverse possession on the part of the owner


Held:
No. The bailees' failure to return the subject matter of commodatum to the bailor did not mean adverse possession on the part of the borrower. The bailee held in trust the property subject matter of commodatum.

Petitioner repudiated the trust by declaring the properties in its name for taxation purposes.

CD: Commissioner of Internal Revenue v. Mc.George Food Industries, Inc.

CIR v. MC.GEORGE FOOD INDUSTRIES, INC.
G.R. No. 174157 October 20, 2010
Carpio, J.

Doctrine:
Pursuant to the general rule on the prospective application of laws, the 1997 NIRC operates to govern the conduct of corporate taxpayers the moment it took effect on 1 January 1998.


Facts:
On 15 April 1998, respondent filed with the BIR its final adjustment income tax return for the calendar year ending 31 December 1997. The return indicated a net overpayment of P4,736,188. Exercising its option to either seek a refund of this amount or carry it over to the succeeding year as tax credit, respondent chose the latter, indicating in its 1997 final return that it wished the amount "to be applied as credit to next year."

On 15 April 1999, respondent filed its final adjustment return for the calendar year ending 31 December 1998, indicating a tax liability of P5,799,056. Instead of applying to this amount its unused tax credit carried over from 1997 (P4,736,188), respondent merely deducted from its tax liability the taxes withheld at source for 1998 and paid the balance of P5,581,877.

On 14 April 2000, respondent simultaneously filed with the BIR and the Court of Tax Appeals (CTA) a claim for refund of its overpayment in 1997 of P4,736,188. The CTA held that refund was proper because respondent complied with the requirements of timely filing of the claim and its substantiation.

Petitioner sought reconsideration, contending that respondent is precluded from seeking a refund for its overpayment in 1997 after respondent opted to carry-over and apply it to its future tax liability, following Section 76 of the 1997 NIRC. Petitioner claimed that Section 76 applies to respondent because by the time respondent filed its final adjustment return for 1997 on 15 April 1998, the 1997 NIRC was already in force, having taken effect on 1 January 1998.

The CTA denied reconsideration, holding that the 1997 NIRC only covers transactions done after 1 January 1998.

The Court of Appeals affirmed the CTA, ruling that the right to claim for refund or tax credit must be governed by the law in effect at the time the excess credits were earned. Thus, the pertinent law applicable to the case at bar is Section 69 of the old Tax Code.


Issue:
Whether or not the 1997 NIRC is the governing law


Held:
Yes. Section 76 of the 1997 NIRC controls.

Section 76 should be applied following the general rule on the prospective application of laws such that they operate to govern the conduct of corporate taxpayers the moment the 1997 NIRC took effect on 1 January 1998.

The lower courts grounded their contrary conclusion on the fact that respondent’s overpayment in 1997 was based on transactions occurring before 1 January 1998. This analysis suffers from the twin defects of missing the gist of the present controversy and misconceiving the nature and purpose of Section 76. None of respondent’s corporate transactions in 1997 is disputed here. Nor can it be argued that Section 76 determines the taxability of corporate transactions. To sustain the rulings below is to subscribe to the untenable proposition that, had Congress in the 1997 NIRC moved the deadline for the filing of final adjustment returns from 15 April to 15 March of each year, taxpayers filing returns after 15 March 1998 can excuse their tardiness by invoking the 1977 NIRC because the transactions subject of the returns took place before 1 January 1998. A keener appreciation of the nature and purpose of the varied provisions of the 1997 NIRC cautions against sanctioning this reasoning.

A Shout-out to Atty. Romeo Batino

It was early Sunday morning when I was told that my good Labor Standards professor, Atty. Romeo Batino, passed away.

Most law professors make a name for themselves through tough juice teaching. Seemingly, this method has become the norm which students must embrace in law schools. That’s not the case for Atty. Batino. His teaching method is considered unorthodox in law school. He understood the student’s innocence in the craft.

My Labor Standards class was always lively contrary to what others were saying. It also helped that most were working students. Atty. Batino interacted with us to the point that he never left any questions hanging. Ask questions to other professors and you’ll get scolded for laziness to study or just for plain accidental stupidity.

I, myself, never thought of getting interested in the field of Labor Law. Atty. Batino made me appreciate it more simply because I learned more from him.

To him, I will dedicate my first labor case win.

Journey well Sir…

Plea Bargaining 101

Plea bargain
MY FOUR CENTAVOS By Dean Andy Bautista
The Philippine Star January 22, 2011


Given the continuing interest on the General Garcia plunder case, it may be worthwhile to discuss the concept of a plea bargain. This is essentially an agreement in a criminal case where the prosecution and the defense agree that the accused will plead guilty to a lesser charge than what is contained in the information. The equivalent of a plea bargain in a civil case is a compromise settlement.

Parties enter into a plea bargain for several reasons. Aside from escaping the rigors of a full blown trial, the accused may wish to avoid the risk of conviction to the original, more serious charge. As far as the prosecution is concerned, a plea bargain should mean reduced costs and the ability to focus more on other cases.

In the United States, a plea bargain can be one of several types. Charge bargaining occurs when an accused pleads guilty to a less serious crime (as in the Garcia case). In count bargaining, the accused pleads guilty to a subset of multiple original charges. In sentence bargaining, an accused knows in advance what sentence will be given. In fact bargaining, the prosecution and defense agree to a certain stipulation of facts which will affect what the penalty will be in accordance with the sentencing guidelines. Interestingly, in the US, plea bargaining has become the rule rather than the exception in criminal cases.

In the Philippines, the pertinent rule on plea bargaining is found in Rule 116, Section 2 of the Rules of Court which provides:

“Plea of guilty to a lesser offense — At arraignment, the accused, with the consent of the offended party and prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary.”

In the Garcia case, the original charge was that of plunder which is a capital crime punished under Republic Act 7080. The lesser offense that he subsequently pleaded guilty to was direct bribery which is punished under Article 210 of the Revised Penal Code and facilitating money laundering covered under Republic Act 9160. Query as to whether the crime of direct bribery and money laundering are “necessarily included” in the offense of plunder? Note that both crimes are punished by different laws.

Note as well the requirement of obtaining the consent of the offended party before the trial court will allow the downgrading of the original offense charged. In this instance, who is the offended party? Is it the Armed Forces of the Philippines since the money seems to have been taken from its coffers or the Republic since public money is involved. In any event, if we follow the news reports, it would seem that neither of their consents was secured.

* * * *

CD: Roa v. Heirs of Santiago Ebora

ROA v. HEIRS OF SANTIAGO EBORA
G.R. No. 161137 March 15, 2010
Corona, J.

Doctrine:
Any right acquired by one buyer over a disputed property cannot prevail over, but must yield to, any superior right possessed by another buyer. The spring cannot rise higher than its source.


Facts:
A parcel of land, which was continuously, openly and adversely possessed by Santiago Ebora, was mistakenly included by Chacon Enterprises in its application for original registration. As a result, litigation arose between the heirs of Ebora and Chacon Enterprises.

During the case’s pendency, the heirs of Ebora sold the land to their co-heir Josefa Ebora Pacardo (Josefa) and her husband Rosalio Pacardo. On the same day, the spouses Pacardo assigned the property to Digno Roa, married to petitioner Lydia Roa. The corresponding deeds of absolute sale and assignment were inscribed on original certificate of title (OCT) and a transfer certificate of title was issued in the name of Digno Roa.

The case was resolved against Chacon Enterprises and in favor of the heirs of Ebora.

Thereafter the heirs of Ebora again adjudicated the land among themselves, pro indiviso. That same day, a deed of confirmation of a prior conveyance by Josefa to respondent Samuel Sonnie Lim of a portion was likewise inscribed on TCT No. T-48097. The issuance of new TCTs in the name of Alejandro Ebora was likewise inscribed in the same. The lots were thereafter sold to various respondents which resulted in the issuance of new TCTs in the names of the respective vendees.

All these transactions occurred without petitioner’s knowledge and consent.

In view of the death of her husband, petitioner filed a petition for annulment and cancellation of TCT No. 48097 and its derivative titles. The RTC ruled against the petitioner. Hence, this petition for review on certiorari.


Issue:
Whether or not the petitioner has a superior right over the land as against the respondents


Held:
Yes. From the moment the disputed land was sold to the spouses Pacardo, the heirs of Ebora lost all their rights and interest over the property.

Thus, the heirs of Ebora had nothing to adjudicate among themselves. Neither did they have anything to transfer to the vendees or successors-in-interest. As such, the transferees of the heirs of Ebora acquired no better right than that of the transferors. The spring cannot rise higher than its source.

Whatever right a buyer, notwithstanding the fact that he is an innocent purchaser for value, may have acquired over the disputed property cannot prevail over, but must yield to, the superior right possessed by another buyer.

Doctrine of Innocent Purchaser

Today, the Supreme Court is set to hear the oral arguments of the petition involving the Hacienda Luisita dispute. Petitioners, who are also President Benigno Aquino III’s cousins, are seeking to overturn a 2005 decision by the Presidential Agrarian Reform Council (PARC) scratching the stock distribution option (SDO) under CARP reached in 1989.

One of the issues to be discussed is whether the Luisita Industrial Park Corp. and Rizal Commercial Banking Corp., as transferees of a portion of the 6,500-hectare estate, may invoke the “doctrine of innocent purchaser.”

Now, what is exactly the doctrine of innocent purchaser?

The subject is summarily discussed in the case of Tan v. Dela Vega, G.R. No. 168809, 10 July 2006.

Accordingly, the doctrine of innocent purchaser rules that a void title may be the source of a valid title in the hands of an innocent purchaser for value. An innocent purchaser for value is one who buys the property of another, without notice that some other person has a right to, or interest in, such property and pays a full and fair price for the same at the time of such purchase, or before he has notice of the claims or interest of some other person in the property.

CD: Continental Steel v. Montaño

Continental Steel v. Montaño
G.R. No. 182836 October 13, 2009
Chico-Nazario, J.

Doctrines:
Life is not synonymous with civil personality. One need not acquire civil personality first before he/she could die. Even a child inside the womb already has life.

In case of doubt in the interpretation of any law or provision affecting labor, such should be interpreted in favor of labor.


Facts:
Hortillano, an employee of petitioner Continental Steel Manufacturing Corporation (Continental Steel) filed a claim for Paternity Leave, Bereavement Leave and Death and Accident Insurance for dependent, pursuant to the Collective Bargaining Agreement (CBA).

The claim was based on the death of Hortillano’s unborn child. Hortillano’s wife had a premature delivery while she was in the 38th week of pregnancy. The female fetus died during labor due to fetal Anoxia secondary to uteroplacental insufficiency.

Petitioner immediately granted Hortillano’s claim for paternity leave but denied his claims for bereavement leave and other death benefits.

It was maintained by Hortillano, through the Labor Union, that the provisions of the CBA did not specifically state that the dependent should have first been born alive or must have acquired juridical personality so that his/her subsequent death could be covered by the CBA death benefits.

Petitioner argued that the express provision of the CBA did not contemplate the death of an unborn child, a fetus, without legal personality. It claimed that there are two elements for the entitlement to the benefits, namely: (1) death and (2) status as legitimate dependent, none of which existed in Hortillano’s case. Continental Steel contended that only one with civil personality could die, relying on Articles 40, 41 and 42 of the Civil Code which provides:

Article 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article.

Article 41. For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. However, if the fetus had an
intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb.

Article 42. Civil personality is extinguished by death. The effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will.

Hence according to the petitioner, the unborn child never died because it never acquired juridical personality. Proceeding from the same line of thought, Continental Steel reasoned that a fetus that was dead from the moment of delivery was not a person at all. Hence, the term dependent could not be applied to a fetus that never acquired juridical personality.

Labor arbiter Montaño argued that the fetus had the right to be supported by the parents from the very moment he/she was conceived. The fetus had to rely on another for support; he/she could not have existed or sustained himself/herself without the power or aid of someone else, specifically, his/her mother.

Petitioner appealed with the CA, who affirmed the Labor Arbiter’s resolution. Hence this petition.


Issues:
1. Whether or not only one with juridical personality can die
2. Whether or not a fetus can be considered as a dependent
3. Whether or not any ambiguity in CBA provisions shall be settled in favor of the employee


Held:
1. No. The reliance of Continental Steel on Articles 40, 41 and 42 of the Civil Code for the legal definition of death is misplaced. Article 40 provides that a conceived child acquires personality only when it is born, and Article 41 defines when a child is considered born. Article 42 plainly states that civil personality is extinguished by death. The issue of civil personality is not relevant in this case.

The above provisions of the Civil Code do not provide at all a definition of death. Moreover, while the Civil Code expressly provides that civil personality may be extinguished by death, it does not explicitly state that only those who have acquired juridical personality could die.

Life is not synonymous with civil personality. One need not acquire civil personality first before he/she could die. Even a child inside the womb already has life.

No less than the Constitution recognizes the life of the unborn from conception, that the State must protect equally with the life of the mother. If the unborn already has life, then the cessation thereof even prior to the child being delivered, qualifies as death.

2. Yes. Even an unborn child is a dependent of its parents. Hortillano’s child could not have reached 38-39 weeks of its gestational life without depending upon its mother, Hortillano’s wife, for sustenance. The CBA did not provide a qualification for the child dependent, such that the child must have been born or must have acquired civil personality. Without such qualification, then child shall be understood in its more general sense, which includes the unborn fetus in the mother’s womb.

3. Time and again, the Labor Code is specific in enunciating that in case of doubt in the interpretation of any law or provision affecting labor, such should be interpreted in favor of labor. In the same way, the CBA and CBA provisions should be interpreted in favor of labor. As decided by this Court, any doubt concerning the rights of labor should be resolved in its favor pursuant to the social justice policy. (Terminal Facilities and Services Corporation v. NLRC [199 SCRA 265 (1991)])

Bereavement leave and other death benefits are granted to an employee to give aid to, and if possible, lessen the grief of, the said employee and his family who suffered the loss of a loved one. It cannot be said that the parents’ grief and sense of loss arising from the death of their unborn child, who, in this case, had a gestational life of 38-39 weeks but died during delivery, is any less than that of parents whose child was born alive but died subsequently.

CD: Commissioner of Internal Revenue v. Eastern Telecommunications Philippines

Commissioner of Internal Revenue v. Eastern Telecommunications Philippines
G.R. No. 163835 July 7, 2010
Brion, J.

Doctrine:
Lapses in the literal observance of a rule of procedure may be overlooked when they have not prejudiced the adverse party and especially when they are more consistent with upholding settled principles in taxation.

The burden of strict compliance with statutory and administrative requirements by the person claiming for a tax refund cannot be offset by the non-observance of procedural technicalities by the government’s tax agents when the non-observance of the remedial measure addressing it does not in any manner prejudice the taxpayer’s due process rights.


Facts:
Eastern filed with the CIR a written application for refund or credit of unapplied input taxes it paid on the imported equipment purchased during 1995 and 1996 amounting to P22,013,134.00. To toll the running of the two-year prescriptive period under the same provision, Eastern filed an appeal with the CTA. The CTA found that Eastern has a valid claim for the refund/credit of the unapplied input taxes, declaring it entitled to a tax refund of P16,229,100.00.

The CIR filed a motion for reconsideration of the CTA’s decision. Subsequently, it filed a supplemental motion for reconsideration. The CTA denied the CIR’s motion for reconsideration. The CIR then elevated the case to the CA, who affirmed the CTA ruling and likewise denied the subsequent motion for reconsideration. Hence, the present petition.

The CIR posits that, applying Section 104(A) of the Tax Code on apportionment of tax credits, Eastern is entitled to a tax refund of only a portion of the amount claimed. Since the VAT returns clearly reflected income from exempt sales, the CIR asserts that this constitutes as an admission on Eastern’s part that it engaged in transactions not subject to VAT. Hence, the proportionate allocation of the tax credit to VAT and non-VAT transactions provided in Section 104(A) of the Tax Code should apply.

Eastern objects to the arguments raised in the petition, alleging that these have not been raised in the Answer filed by the CIR before the CTA and was only raised. In fact, the CIR only raised the applicability of Section 104(A) of the Tax Code in his supplemental motion for reconsideration of the CTA’s ruling. Eastern claims that for the CIR to raise such an issue now would constitute a violation of its right to due process; following settled rules of procedure and fair play, the CIR should not be allowed at the appeal level to change his theory of the case.

Eastern further argues that there is no evidence on record that would evidently show that respondent is also engaged in other transactions that are not subject to VAT.


Issue:
Whether or not the rule in Section 104(A) of the Tax Code on the apportionment of tax credits can be applied in appreciating Eastern’s claim for tax refund, considering that the matter was raised by the CIR only when he sought reconsideration of the CTA ruling


Held:
Yes. The question of the applicability of Section 104(A) of the Tax Code was already raised but the tax court did not rule on it. This failure should not be taken against the CIR. The mere declaration of exempt sales in the VAT returns, whether based on Section 103 of the Tax Code or some other special law, should have prompted for the application of Section 104 (A) of the Tax Code to Eastern’s claim.

The general rule is that appeals can only raise questions of law or fact that (a) were raised in the court below, and (b) are within the issues framed by the parties therein (People v. Echegaray, G.R. No. 117472). An issue which was neither averred in the pleadings nor raised during trial in the court below cannot be raised for the first time on appeal.

The rule against raising new issues on appeal is not without exceptions; it is a procedural rule that the Court may relax when compelling reasons so warrant or when justice requires it. What constitutes good and sufficient cause that would merit suspension of the rules is discretionary upon the courts (CIR v. Mirant Pagbilao Corporation, G.R. No. 159593). Another exception is when the question involves matters of public importance.

“Taxes are the lifeblood of the government.” For this reason, the right of taxation cannot easily be surrendered; statutes granting tax exemptions are considered as a derogation of the sovereign authority and are strictly construed against the person or entity claiming the exemption. Claims for tax refunds, when based on statutes granting tax exemption or tax refund, partake of the nature of an exemption; thus, the rule of strict interpretation against the taxpayer-claimant similarly applies (CIR v. Fortune Tobacco Corporation, G.R. Nos. 167274-75).

The taxpayer is charged with the heavy burden of proving that he has complied with and satisfied all the statutory and administrative requirements to be entitled to the tax refund. This burden cannot be offset by the non-observance of procedural technicalities by the government’s tax agents when the non-observance of the remedial measure addressing it does not in any manner prejudice the taxpayer’s due process rights.

Lapses in the literal observance of a rule of procedure may be overlooked when they have not prejudiced the adverse party and especially when they are more consistent with upholding settled principles in taxation.

Supreme Plagiarism

The Supreme Court is threading a lot of negative criticisms nowadays. This article of Former Chief Justice Artemio V. Panganiban sheds light on the issue of plagiarism facing the High Court.

With Due Respect : Plagiarism in the Supreme Court?
By Artemio V. Panganiban
Columnist
Philippine Daily Inquirer
Posted date: August 07, 2010


THE SUPREME Court is once more embattled. This time, the battle relates not just to the wisdom of its decision. This time, it seeps to the very ability and integrity of the Court to write its judgments. A group of litigants is accusing it of plagiarism and of misusing the allegedly plagiarized materials to support the opposite of what the plagiarized items were intended to uphold.Short backgrounder. On April 28, 2010, the Supreme Court en banc, in “Vinuya vs Romulo,” dismissed the petition of more than 70 comfort women belonging to the “Malaya Lolas Organization.” It refused to compel the respondent government officials to secure from Japan an “apology and other forms of reparations” for the rape and other abuses committed by Japanese soldiers against them during World War II.Essentially, the Court ruled that the power to conduct foreign relations is an executive prerogative that the Court could not interfere with. Since the Treaty of Peace with Japan already settled all war claims of the Philippines, the Court said it could not attribute grave abuse to the respondent officials for refusing to take up the cudgels for the comfort women at this late stage.Instead of just challenging the merits of the decision in their motion for reconsideration and supplemental motion for reconsideration, the comfort women’s lawyers—Harry Roque and Romel Bagares—also accused the Court of “wholly lift(ing), without proper attribution, from at least three sources.”They identified the writers and the plagiarized articles as: (1) Evan J. Criddle and Evan Fox-Decent from their article, “A Fiduciary Theory of Jus Cogens” published in 2009 in the Yale Journal of International Law; (2) Christian J. Tams from his book, “Enforcing Erga Omnes Obligations in International Law” published by the Cambridge University Press in 2005; and (3) Mark Ellis from his article, “Breaking the Silence: On Rape as an International Crime” published in the Case Western Reserve Journal of International Law in 2006.

International dimension. Before the Court could rule on these motions, Dr. Mark Ellis—one of the three authors—sent an e-mail to the justices, dated July 23, saying: “In particular, I am concerned about a large part of the extensive discussion in footnote 65, pp. 27-28 of the said Judgment of your esteemed Court. I am also concerned that your esteemed Court may have misread the arguments I made in the article and employed them for cross-purposes. This would be ironic since the article was written precisely to argue for the appropriate legal remedy for victims of war crimes, genocide, and crimes against humanity.” In a blog in Opinio Juris, Criddle found the alleged plagiarism and contrary conclusion “most troubling.”

To stress the international dimension of his intervention, Ellis signed his letter in his capacity as “executive director” of the International Bar Association based in London. IBA is the largest lawyers’ organization in the world.

Soon enough, calls for discipline against the decision writer and the nine justices who concurred in full with the decision (the rest concurred only in part, or only “in the result”) erupted. The Court referred the complaint for investigation and recommendation to the newly created Committee on Ethics and Ethical Standards, composed of Chief Justice Renato C. Corona, chairman; Justice Teresita J. Leonardo de Castro, working vice chair, Justices Roberto A. Abad, Jose P. Perez and Jose C. Mendoza, members. Retired Justice Jose C. Vitug was named a non-voting observer-consultant.

Delicate questions. While the Court acted on the complaint with commendable speed, it still faces major dilemmas because all the Ethics Committee members concurred unqualifiedly in the decision penned by Justice Mariano C. del Castillo. Pages 33 and 34 of the decision show that nine magistrates concurred fully with the ponente; namely, all the five members of the Ethics Committee, plus Justices Presbitero J. Velasco Jr., Arturo D. Brion, Lucas P. Bersamin and Martin S. Villarama Jr.

Five other magistrates scribbled their votes on the signature pages of the decision, as follows: then Chief Justice Reynato S. Puno, “In the result”; Justice Antonio T. Carpio, “I concur on the ground that petitioners’ claims are barred by the Peace Treaty between RP and Japan”; while Justice Antonio Eduardo B. Nachura filed a short separate opinion concurring “in the result on strictly procedural grounds,” to which Justices Conchita Carpio Morales and Diosdado M. Peralta “joined.”

On July 22, Justice Del Castillo wrote his colleagues, saying “(t)here was every intention to attribute all sources whenever due. At no point was there ever any malicious intent to appropriate another’s work as our own… This case has not attained finality; in fact, it is pending resolution of the petitioners’ motion for reconsideration. As such it is still within the power of the Court to reverse or amend its decision…” Last Tuesday, Roque and Bagares were asked to comment on this letter.

The case raises novel questions, like: As it applies to judicial decisions, what constitutes plagiarism? What is the penalty for its commission? Who, if any, should be held responsible? May those who fully concurred with the decision investigate the matter as members of the Ethics Committee?

Having caught national and international attention, the delicate issue of plagiarism as it relates to decision-making deserves prudent, fair and speedy resolution.

* * *